Did Omarosa break the law by secretly taping her firing in White House Situation Room?

Omarosa Manigault Newman is going after President Donald Trump and his administration with a book entitled "Unhinged: An Insider’s Account of the Trump White House" set to be released on Aug. 14.
USA TODAY

White House Chief of Staff John Kelly on June 21, 2018, and Omarosa Manigault Newman, at Trump Tower in New York City on Jan. 16, 2017. Photos by ORIG FILE ID: AFP_18C11I(Photo: Olivier Douliery, Dominick Reuter/AFP/Getty Images)

After former White House staffer Omarosa Manigault Newman revealed Sunday that she'd covertly taped her December 2017 firing by Chief of Staff John Kelly in the Situation Room, two questions came to mind: First, just how did she manage to get a recording device in there? And then there's that most Washington of questions: could she be in legal trouble as a result?

But the answer to the legal question isn't any clearer: Maybe, maybe not. And it depends on whom you ask.

Mark Zaid, a Washington attorney who specializes in national security cases, tells USA TODAY he's represented dozens of federal workers who were caught accidentally bringing their phones or other devices into secure rooms where they are prohibited. If they do it more than once, they can lose their security clearance, he says, which is an administrative violation, not a crime.

"Now if you're recording, that is ratcheting up the level significantly because now it's intentional, so it's a major security violation for sure," he notes. "But I've not seen anyone identify a (criminal) law that can reasonably and practically be applied to this type of situation."

How did you record the conversation with John Kelly in the White House Situation Room? -@savannahguthrie

Zaid says there is a possibility that a Watergate-era law against misappropriating a government "record" (in this case, a secret recording) could be applied but it's "incredibly unlikely" the government would pursue such a case, in part because the law could potentially apply to thousands of government workers who routinely bring work documents home with them.

He points out that Omarosa, having been fired from the White House, has already lost her security clearance, though it's not clear that she had – or needed – one while working on outreach to historically black colleges and universities on racial disparities in the military justice system.

But if she "ever reapplies for a security clearance, then she'll have a problem," Zaid says, though the chances of her ever reapplying are probably minuscule anyway.

Omarosa Manigualt Newman on the "Today Show" on Aug. 13, 2018 in New York City.(Photo: Eduardo Munoz Alvarez/Getty Images)

But should she get a lawyer? "This is Washington and everyone should have a lawyer," he half-jokes.

Meanwhile, the rest of Washington is savoring the schadenfreude and chewing over Omarosa's potential legal jeopardy.

President Donald Trump, Omarosa's former mentor and once a keen admirer of his reality-TV co-star didn't comment on her potential legal jeopardy in a series of Monday tweets but did disparage her as "wacky" and a "lowlife" who was "vicious, but not smart."

He continued, "While I know it’s 'not presidential' to take on a lowlife like Omarosa, and while I would rather not be doing so, this is a modern day form of communication and I know the Fake News Media will be working overtime to make even Wacky Omarosa look legitimate as possible. Sorry!"

While I know it’s “not presidential” to take on a lowlife like Omarosa, and while I would rather not be doing so, this is a modern day form of communication and I know the Fake News Media will be working overtime to make even Wacky Omarosa look legitimate as possible. Sorry!

Current and former officials of Trump's White House were unanimous in their belief that Omarosa's secret taping constituted law-breaking as well as trust-breaking, and at least one former official of President Barack Obama's administration agreed.

During an appearance on Trump's favorite morning show, "Fox & Friends," the president's lawyer, former New York mayor Rudy Giuliani, said he thinks Omarosa may have broken the law by recording Kelly when he fired her late last year during a locked-door meeting in the super-secure Situation Room of the White House, described in Omarosa's new book, "Unhinged," set for release on Tuesday.

"She's certainly violating national security regulations, which I think have the force of law," he said on Fox News' "Fox & Friends," Trump's favorite political talk show.

Trump press secretary Sarah Huckabee Sanders said in a statement issued Sunday that the "very idea a staff member would sneak a recording device into the White House Situation Room, shows a blatant disregard for our national security."

Sanders' predecessor, Sean Spicer, told ABC News that if Omarosa had “top secret” security clearance (again, it's not clear she did), she would have been required to abide by security protocols when in secure areas or SCIFs (sensitive compartmented information facility) such as the Situation Room.

“It’s an unbelievable violation of protocol and the law,” Spicer said. “You can lose your security clearance for bringing your device into (a) SCIF — to bring it in is a violation but to willfully record it — you’re entering a whole other realm.”

Juliette Kayyem, a former top Homeland Security official under President Obama who is now a CNN national security analyst, was aghast at Omarosa's admission during Sunday's "Meet the Press" show, the official start of Omarosa's national book tour.

In a CNN story published Sunday, Kayyem wrote that "external devices" such as smartphones or recorders are strictly prohibited from the Situation Room," in order to keep foreign enemies or spy services from hacking in and listening to sensitive information.

"The fact that the recording exists is shocking; that it allegedly happened in the most secure room in the White House – known as a SCIF (Sensitive Compartmented Information Facility) – would represent a violation of strict internal procedures prohibiting unsecure devices there," Kayyem wrote. "The goal is to keep America safe."

Omarosa should consult a lawyer, advised former U.S. Attorney Joyce Vance. She told MSNBC that the former aide likely committed a "technical crime" by taping her Situation Room meeting and then releasing the tape as part of her book tour.

“There is likely a technical crime or two that’s been committed here," Vance said. "Obviously, prosecutors don’t choose to prosecute every technical crime that’s been committed, but she probably should get herself a lawyer and be in consultation.”

On the other hand, maybe it's all much ado about not much, says Tommy Vietor, a former Obama administration spokesman for the National Security Council. After all, he argued on Twitter, not everything that happens in the Situation Room, including getting fired, is a classified matter.

"I can't get that worked up about Omarosa taping Gen Kelly in the Situation Room. Yes, it's against the rules. Yes, it's a SCIF," he said in a tweet Sunday. "But ultimately, the sitroom is just a bunch of conference rooms. He didn't read the (top secret Presidential Daily Brief) aloud and then fire her. It was an unclassified discussion."

I can't get that worked up about Omarosa taping Gen Kelly in the Situation Room. Yes, it's against the rules. Yes, it's a SCIF. But ultimately the sitroom is just a bunch of conference rooms. He didn't read the PDB aloud and then fire her it was an unclassified discussion.

So far, Omarosa's publisher, Gallery Books, a division of Simon & Schuster, has not responded to requests for comment. But in a statement last week the publisher said: "We are confident that Omarosa Manigault Newman can substantiate her highly-anticipated account of life inside the Trump White House." This suggests the publisher's lawyers have at least looked at this question.

Also, it should be noted that the law in Washington, D.C. allows “one-party consent” on recordings, meaning that secretly recording Kelly without his permission isn't itself illegal, as it would be in some states.

But back to the how question. The tasty new rumor, according to Zaid and Twitter, is that Omarosa used a recording pen to capture Kelly firing her. Whatever the device, the recording was remarkably unmuffled.

"Everyone assumed it was a cellphone but either one, a phone or a pen, is easy – you just have it in your pocket or purse," Zaid said.

"Several current and former White House/Trump campaign staffers have told me that they are concerned that Omarosa used a pen that has the capability of capturing audio to surreptitiously record meetings," tweeted New York Magazine and Huffington Post writer Yashar Ali.

Several current and former White House/Trump campaign staffers have told me that they are concerned that Omarosa used a pen that has the capability of capturing audio to surreptitiously record meetings.

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Omarosa Manigault-Newman, 44, former White House Director of Communications for the Office of Public Liaison, left her White House job this week under disputed circumstances. She says she was not escorted from the premises after a difficult discussion with Chief of Staff John Kelly. Saul Loeb, AFP/Getty Images

TV personality and former White House staffer Omarosa Manigault Newman discusses her time in the White House and secret tapes she's released on "Today," Aug. 13, 2018, in New York. Manigault Newman was promoting her book "Unhinged." Zach Pagano/AP

The former reality TV personality was a contestant on Donald Trump's show 'The Apprentice' in 2004. On April 28, 2018, she arrived to the White House Correspondents' Dinner in Washington, DC with her husband, Pastor John Allen Newman. The two wed in 2017 at the Trump International Hotel in Washington, D.C. Tasos Katopodis/Getty Images

The White House announced Manigault-Newman's resignation from her position as director of communications for the White House Office of Public Liaison would be effective Jan. 20, 2018. In this photograph, she listens during the daily press briefing at the White House on Oct. 27, 2017. Drew Angerer/Getty Images

When Chief of Staff John Kelly took the helm in the White House, Manigault-Newman's ability to reach the President directly was greatly curtailed. Part of her role was to be a liaison between the White House and the black community. Mark Wilson, Getty Images

President Donald Trump (R) is joined by Vice President Mike Pence, White House Director of Communications for the Office of Public Engagement and Intergovernmental Affairs Omarosa Manigault (L) and other staff members during a meeting with the Congressional Black Caucus Executive Committee at the White House. During the 2016 presidential campaign, Trump asked African Americans to support him, saying, "You're living in poverty, your schools are no good, you have no jobs, 58 percent of your youth is unemployed -- what the hell do you have to lose?" Chip Somodevilla, Getty Images

Counselor to the President Kellyanne Conway left, and Director of Communications for the Office of Public Liaison Omarosa Manigault, 2nd left, and White House communications director Mike Dubke, right, listen as a reporter asks a question during a joint press conference in the East Room of the White House. Shawn Thew, EPA

Omarosa Manigault, speaks with reporters during the Cocktails and Convention reception hosted by the Black Republican Caucus of Florida, in Cleveland, OH. She does not enjoy great support in the black community. Jarrad Henderson, USA TODAY NETWORK

While the dramatic in-your-face competitor was eventually fired in Donald Trump's reality show, the two hit it off and she has remained extremely loyal to Trump. Omarosa speaks to the media to show her support for Republican presidential candidate Donald Trump after he wins the New York Primary at Trump Towers in Manhattan on April 19, 2016. Carucha L. Meuse, The Journal News

Omarosa makes an entrance on the red carpet for the Emmy Awards at the Shrine Auditorium in Los Angeles. She made such an impact on Trump's show she's famous enough to go by her first name only. Dan MacMedan, USA TODAY

You've made it when you become a character on 'Saturday Night Live.' Fired 'Apprentice' candidate Omarosa, portrayed by Maya Rudolph, is repeatedly struck in the head by falling objects (culminating in a sidewalk garbage can) when she visits Saturday Night Live's "Weekend Update" with Tina Fey (left) and Jimmy Fallon (right). Mary Ellen Matthews, NBC